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Controversial cases await justices

After ending its last term with one of the most polarizing decisions in decades, the Supreme Court will be back at work Monday with a pile of controversial cases waiting in the wings.

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Interest in the court’s internal politics is high following the 5-4 decision upholding President Obama’s healthcare law, and the subsequent reports of tensions among the conservative justices. Monday’s oral arguments will be the justices' first public session since they delivered the healthcare ruling.

The justices have maintained that there’s no bad blood between them. Justice Antonin Scalia, during interviews this summer to promote a new book, repeatedly said legal disagreements don’t affect the justices’ working relationships.

But a new book from CNN legal analyst Jeffrey Toobin says Scalia was “furious” at Chief Justice John Roberts over the healthcare ruling, in which Roberts sided with the court’s traditionally liberal justices. Roberts reportedly wanted to strike down the law’s individual mandate but was not comfortable overturning the entire Affordable Care Act, while Scalia and the other Republican appointees insisted that the entire law had to go.

The fact that Roberts’s shift leaked to the press indicated deep divisions inside the court. The justices and their clerks are famous for keeping a tight lid on their deliberations, and longtime court watchers were shocked to see details of Roberts’s role leak to CBS News just days after the decision came down.

But if there’s anger with Roberts on the right, it’s unlikely to last, as he’s unlikely to be siding with the court’s liberal justices on major decisions this term.

Roberts is all but sure to side with conservatives on the first blockbuster case — a lawsuit challenging affirmative action in college admissions. The court will hear oral arguments in the case on Oct. 10, only the second week of the term.

The court ruled in 2003 that colleges could use race as a factor when making admissions decisions, but decided it could restrict affirmative action in that particular case.

Justice Elena Kagan, part of the court’s liberal bloc, is not taking part in the case because she worked on it during her time as President Obama’s solicitor general. Justice Anthony Kennedy, the court’s traditional swing vote, has sided with conservatives in past affirmative action cases.

Roberts has sent strong signals that he does not think affirmative action holds up to legal scrutiny.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote in a 2007 opinion.

Kevin Walsh, a Richmond University law professor and former Scalia clerk, said the controversy around affirmative action will likely play out differently from the fiercely partisan healthcare debate.

“It doesn’t break down cleanly along the party lines the same way that healthcare did,” Walsh said.

Another racially charged case could join the docket if justices take up a challenge to part of the Voting Rights Act. On the heels of an election with rampant charges of voter fraud and suppression, the court could weigh whether states with a history of discrimination should be required to get approval from Washington before changing their voting laws.

Walsh also said there’s a good chance the court will take up the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages.
Two challenges to DOMA have been appealed to the high court, and a challenge to California’s Proposition 8 is also in the mix.

Legal experts say there’s no question the Supreme Court will rule on same-sex marriage in the near future; the only questions are which case or cases it will hear, and how quickly.

Kennedy would almost certainly be the deciding vote on same-sex marriage, and many observers see a libertarian bent in his past decisions that indicate he might side with the court’s liberals in favor of legalizing it.

Social issues aren’t the only big cases on the court’s horizon. The term will begin Monday with a closely watched case over whether U.S. judges can hear certain international cases.

The case was argued previously, but some justices seemed to want to rule on a broader question, so a re-hearing was scheduled. The last time that happened was the polarizing Citizens United case on campaign finance reform.

The justices will also consider police officers’ use of drug-sniffing dogs and possible invasions of privacy. A pair of cases set for argument in late October deal with canine units and the scope of the Constitution’s ban on illegal search and seizure.